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Power of Attorney

   
    Power of Attorney
For most people, the durable power of attorney is the most important estate planning instrument available--even more useful than a will. A power of attorney allows a person you appoint -- your "attorney-in-fact" -- to act in your place for financial purposes when and if you ever become incapacitated.

In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.

A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.

A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.

While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination "except for good cause or disqualification."
 
 
 
 
 
 
 
 
 
 
Send mail to maberasturi@ny-elderlaw.com with questions or comments about this web site.
Last modified: 12/21/06
Mark G. Aberasturi, a New York elder law lawyer and estate planning attorney, focuses his law practice on Elder Law and Probate, Estates, Wills and Medicaid Trusts, Living Trusts, Supplemental Needs Trusts, Living Wills and Estate Tax.  Mr. Aberasturi provides legal advice on matters involving Medicaid, Medicare and nursing homes.  Mr. Aberasturi is a member of the National Academy of Elder Law Attorneys, The New York State Bar Association Elder Law Section, and is former chairman of the Orange County, New York Bar Association Elder Law Committee.  His practice is located in Goshen, Orange County New York.
 
Servicing the Hudson Valley area, including Monroe New York 10950, Montgomery New York 12549, Middletown New York 10940 and 10941, Newburgh New York 12550, Wallkill New York 12589, Washingtonville New York 10992, Chester New York 10916, Port Jervis New York 12771, New Windsor New York 12553, Cornwall New York 12518, Central Valley New York 10917, Highland Mills New York 10930, Florida New York 10921, Walden New York 12586, Warwick New York 10990, and Maybrook New York 12583, Tuxedo Park New York 10987, Blooming Grove New York 10914, Circleville New York 10919, Fort Montgomery New York 10922, Harriman New York 10926, Pine Bush New York 12566, New  Hampton New York 10958, Slate Hill New York 10973, Wallkill, New York 12589, as well as Ulster County, Sullivan County and Rockland County.
 
 
This web site is designed for general information only. The information presented on this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship.  Prior results do not guarantee a similar outcome.
 

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